Archive for February, 2014

State Supreme Court: Cops Can Ignore Field Sobriety Tests – If Suspect Passes Them

Wednesday, February 26th, 2014

The latest in the DUI "double standard" department:


Tennessee Supreme Court Says Cops Can Ignore Field Sobriety Tests

Supreme Court of Tennessee rules that cops may arrest an individual even after he passes all sobriety tests

The Newspaper.com.  Feb. 24 — The Tennessee Supreme Court decided on Thursday that the only use for roadside sobriety tests is to collect evidence against motorists, using them to convict individuals for driving under the influence of alcohol (DUI). The high court justices overturned an appellate decision from 2012 that found a driver who passed six of the tests with flying colors should never have been arrested (view 2012 ruling). David D. Bell was arrested on May 13, 2009, even though the trial judge found no evidence of impairment in the sobriety tests when he reviewed the dashcam footage.

"I honestly think that he did pretty dog-gone good on the field sobriety tests, better than most I've seen," Sevier County Circuit Court Judge Rex Henry Ogle observed. "I couldn't pass them as well as he did."

On that early morning in 2009, Bell had stopped by the The Roaming Gnome Pub and Eatery located in Sevierville and had a few drinks. He made a mistake and ended up on the wrong side of the road when Sevierville Police Officer Timothy Russell came upon him. On the roadside, Bell performed the four-finger count, recited the alphabet from G to S, and identified for Officer Russell in what year he turned six. Officer Russell rated his mental acuity as "excellent." Bell also passed the one-leg stand and the walk-and-turn test.

Despite the performance, Officer Russell decided to arrest Bell. Bell moved to suppress the evidence against him, arguing that there was no probable cause for his warrantless arrest. Seeking a conviction, the Supreme Court justices looked to several other states for sympathetic rulings.

"We recognize that not all courts that have addressed this question have reached the same conclusion as the Delaware Supreme Court, the Alaska Court of Appeals, the Minnesota Court of Appeals and the Pennsylvania Commonwealth Court," Justice William C. Koch Jr wrote. "However, we have determined that the approach employed by these courts is entirely consistent with our holdings that determining the existence of probable cause to support a warrantless arrest is not a technical process. Rather, it is a process requiring reviewing courts to conduct a common-sense analysis of the facts and circumstances known to the officers at the time of arrest… we find that performance on field sobriety tests is but one of the many factors officers should consider when deciding whether to arrest a motorist for DUI or similar offenses without a warrant."

The justices reasoned that under the totality of circumstances, passing the sobriety tests is insufficient to cancel out the effect of other indications of intoxication, including the smell of alcohol and a traffic violation. For this reason, the court reversed the lower court findings and agreed with prosecutors that Officer Russell had probable cause to arrest Bell for DUI and ordered the charges to be reinstated against him. The justices noted that Bell may use his performance on the sobriety tests to raise reasonable doubt of his guilt at trial.


Of course, if the field sobriety tests had been failed, they would have been offered in trial as conclusive, scientifically-based evidence of intoxication.  But apparently they should be ignored if they are passed.  I think this is called a "no-win" scenario for the accused.


(Thanks to Ari Weiner.)
 

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Alcohol Intoxication and Race

Friday, February 21st, 2014

As I have said in previous posts, the single greatest flaw in breathalyzers is that they are designed to assume that all humans are the same. You and I are physiologically different, and I am different at this moment from what I will be in an hour. The ratio of alcohol measured on the breath to the amount in the blood, for example, varies widely from time to time and from person to person. Our bodies metabolize alcohol — absorb and eliminate it — at different rates; among other things, this confounds attempts to estimate blood alcohol levels when driving based upon breath/blood tests an hour later.

Further, each of us has a different physiological response — tolerance — to alcohol. An example of this human diversity can be seen in racial differences toward alcohol. The body of scientific literature seems to clearly indicate a racial — i.e., genetic — difference in the metabolism and effects of alcohol. Studies, for example, have found that American Indians metabolize alcohol more than twice as fast as Caucasians. Bennion and Li, "Alcohol Metabolism in American Indians and Whites", 294 New England Journal of Medicine 9 (1976); Holzbacher, "Elimination of Ethanol in Humans", 17 Canadian Society of Forensic Science Journal 182 (1984); Fenna et al., "Ethanol Metabolism in Various Racial Groups", 105 Canadian Medical Association Journal 472 (1971).

The following excerpt is from one of the books I wrote while teaching at a law school some years ago. Entitled Born to Crime (Greenwood Press: London, 1984), it dealt with the sensitive subject of genetic predisposition toward criminal behavior. One chapter addressed the causes of alcoholism:


…This ethnic approach was first used in 1972 in a study of the comparative effects of alcohol on men and women in Japan, Taiwan, Korea and the United States. Wolff, "Ethnic Differences in Alcohol Sensitivity", 175 Science 449 (1972). Interested by the lower rate of alcoholism among Asians, an American physician selected 38 Japanese, 24 Taiwanese, 20 Koreans and 34 Americans as subjects (all between the ages of 25 and 35). He fed each subject measured amounts of beer, with Americans (that is, Caucasians) receiving more than twice as much per pound of body wieght as the Asians. He then measured the body’s reaction to the alcohol by recording the flushing of the earlobe with an optical densitometer, as well as increases in pulse pressure.If there were no genetic differences in reactions to alcohol, the physician could expect to find that flushing (an indication of vessel dilation) and pulse pressure — both under the control of the autonomic nervous system — would be consistent among the various ethnic groups.

The results, however, clearly indicated a genetic factor in the reaction to alcohol. Fully 83 percent of the Asian subjects responded to the measured amounts of alcohol with a marked flush, but only 6 percent of the Caucasians did, despite the latter having received larger doses. Similarly, increases in pulse pressures were observed in 74 percent of the Asians, with only 3 percent (one adult) of the Caucasians demonstrating such a reaction. To insure against any possble cultural differences on alcohol consumption, the physician next duplicated the experiment with Japanese, Taiwanese and American infants, giving them small amounts of port wine in a glucose solution. Again, the results showed that heredity rather than environment dictated the body’s automatic reaction to alcohol: Of the Asian babies, 74 percent responded with flushing, but of the Caucasian babies, only 5 per cent (one baby) so reacted. Clearly, the alcohol-induced changes in blood flow were not learned or conditioned responses….

These experiments were repeated by a team of scientists two years later, this time with 24 Chinese and 24 European subjects. Ewing et al., "Alcohol Sensitivity and Ethnic Background", 131 American Journal of Psychiatry 206 (1974). The results proved to be the same: Skin flushing, increased heart rate and decreased blood pressure in response to alcohol were much more noticeable among the Chinese. The scientists concluded that physiological rather than cultural factors determined the relatively low rate of alcoholism in Asians….


Humans are a diverse group. Each of us, thankfully, is unique. And it is this uniqueness and variability which will always render unreliable the use of machines to estimate blood alcohol levels or degrees of intoxication by measuring breath, and the use of mathematical formulas and legal presumptions based upon uniform metabolism to estimate earlier levels when driving. Note: In most states, the law presumes that (1) a person with .08% blood-alcohol level is under the influence, and (2) the blood-alcohol level when tested is the same as when driving (up to 2 or 3 hours, depending upon the state).

But then, as Dickens wrote long ago, "The law is a ass".
 

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Can Dieting Cause False Breathalyzer Readings?

Monday, February 17th, 2014

I’ve written in the past about how most so-called "breathalyzers" do not measure alcohol:  they actually measure the presence of the methyl group in chemical compounds.  One of those compounds is ethyl alcohol (aka ethanol), and the machine simply assumes that the detected compound is ethyl alcohol. 

Problem:  there are thousands of compounds containing the methyl group — of which over one hundred have been found on the human breath.  Breathing gasoline or paint fumes, for example, or merely absorbing the fumes through the skin, can create false breath test results for days afterwards.  And I’ve posted that the problem is particularly acute when the suspect happens to be a diabetic, as diabetics often have high levels of acetone in their breath — a compound which contains the methyl group. 

However, you don’t have to be a diabetic to have high levels of acetone:  scientific research has established that acetone can exist in perfectly normal individuals at  levels sufficient to cause false high breath-alcohol test readings.  See "Excretion of Low-Molecular Weight Volatile Substances in Human Breath:  Focus on Endogenous Ethanol", 9 Journal of Analytical Toxicology 246 (1985). 

Fasting or radical dieting, such as with the Atkins diet, can also cause significantly elevated acetone.  Studies have concluded that fasting can increase acetone in the body sufficient to obtain breathalyzer readings of .06% (this is cumulative — that is, the .06% will be added by the machine to any levels actually caused by alcohol or other compounds).   See "The Likelihood of Acetone Interference in Breath Alcohol Measurement", 3  Alcohol, Drugs and Driving 1 (1987).  And low-carbohydrate diets, such as Atkins, have long been associated with high levels of acetone production.

Of course, for many years law enforcement denied that any such problem existed, just as they denied that mouth alcohol and radio frequency interference caused false test results — until manufacturers started adding acetone detectors, mouth alcohol detectors and RFI detectors to their machines (none of which, unfortunately, have proven reliable.) 

How reliable are breathalyzers?  "Close enough for government work".  As I’ve posted, there seems to be a growing trend toward letting officers draw blood themselves at the scene of arrest.  Given the reassurances about these machines so often expressed publicly by law enforcement, one has to wonder why they are increasingly turning to the involved process of hypodermic needles, preservatives, anticoagulents, refrigeration and delayed laboratory analysis….
 

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Circadian Rhythm and Field Sobriety Tests

Sunday, February 2nd, 2014

Most drunk driving arrests take place at night, often well after midnight. One reason for this is that many police officers engage in "cherry picking" — that is, the illegal practice of staking out bars and restaurants from about 10:00pm to "closing time" at around 2:00am, pulling cars over on some pretext as patrons leave and drive away.

It is during this period of time that the individual’s circadian rhythm is taking effect. This is the 24-hour biological alarm clock in each of our bodies, often noticeable when we experience "jet lag".

Researchers have found that individuals will perform more poorly in tests during the low point of the circadian rhythm — that is, during the hours after midnight and into the early morning.

Unfortunately, it is just such tests — called "field sobriety tests" — that officers use to determine whether a driver is intoxicated or not.

British physicians and psychiatrists reported that "the same blood alcohol level is associated with a significantly greater impairment of different aspects of psychological funtioning when achieved in the morning." "Circadian Variation in Effects of Ethanol in Man", 18 (Supp. 1) Pharmacology, Biochemistry and Behavior 555.

The researchers concluded that "the differences we have found (in field sobriety test performances)…must be attributable to circadian change and susceptibility of the body to its effect."
 

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